Owen v. Wilmer

• Citation: 101 A. 686,131 Md. 175
• Decision Date: 27 June 1917
• Docket Number: 38.
• Parties: OWEN et al., County Com'rs, v. WILMER.
• Court: Court of Appeals of Maryland

101 A. 686

131 Md. 175

OWEN et al., County Com'rs, v. WILMER.

No. 38.

Court of Appeals of Maryland

June 27, 1917

Appeal from Circuit Court, Charles County; John P. Briscoe, B Harris Camalier, and Fillmore Beall, Judges.

Action by L. Allison Wilmer, to the use of the Eastern Shore Trust Company, against John W. Owen and others, County Commissioners for Charles County. Judgment for plaintiff, and defendants appeal. Appeal dismissed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Adrian Posey and F. Stone Posey, both of La Plata, for appellants.

L. A Wilmer, of Leonardtown, and W. Mitchell Digges, of La Plata for appellee.

CONSTABLE J.

This appeal was taken from a judgment recovered upon an appeal to a circuit court, from a judgment rendered by a justice of the peace. The only question involved before us, of course, is a jurisdictional one, since it is an absolutely settled question in this state, that no appeal lies to this court from a judgment recovered on an appeal from a justice of the peace, if the justice rendering the judgment, and the circuit court in affirming it, had jurisdiction of the case. Cole v. Hynes, 46 Md. 181; Burrell v. Lamm, 67 Md. 580, 11 A. 56. The circuit court for Charles county, acting under the authority conferred by article 26, § 7, appointed the legal plaintiff assistant counsel for the state in a criminal proceeding. At the conclusion of the case the judges certified to the county commissioners that the plaintiff had been so appointed by them, and had rendered the services for which he claimed compensation, and further certified that the fee claimed, of $100, was a reasonable one, and should be paid. The plaintiff thereupon assigned the claim to the equitable plaintiff, which upon the county commissioners refusing to pay, in full, brought suit for the balance before a justice of the peace. Judgment was given for the plaintiff, and the defendant appealed to the circuit court.

Two pleas were filed by the appellant, seeking to raise the question of jurisdiction; but demurrers interposed to them were sustained by the court. By the first, it was alleged that the justice of the peace by whom the judgment was rendered was a stockholder of the appellee corporation, and was therefore disqualified to hear the case. The contention is that the disqualification was brought about through the provision of section 7 article 4 of the Constitution, which reads as follows:

"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanquinity within such degrees as now are, or may hereafter be prescribed by law, or where he shall have been of counsel in the case."

We cannot accede to this proposition. The disqualification provided for by the Constitution refers only to judges of courts of record or courts of law. The office of a justice of the peace has never been considered a court of law or a court of record. In Weikel v. Cate, 58 Md. 105, this court said:

"At common law, justices of the peace were merely conservators or keepers of the peace, and although the Legislature in this state has conferred on them a limited jurisdiction in civil and criminal cases, the office itself has never been considered a court of law. This, we think, is apparent from Constitution, art. 4, § 1, by which it plainly appears, that a court of law, within the meaning of the Constitution, is a court of record."

There being no constitutional provision nor statute touching the disqualification of a justice of the peace on the grounds here alleged, it follows that the justice in this case had jurisdiction to hear the case.

A very similar case, on the facts, is that of Worcester County v. Melvin, 89 Md. 37, 42 A. 910, in which Chief Judge McSherry, in delivering the opinion of the court, announced very instructively, the meaning and effect of sections 7 and 8 of article 26 of the Code, taken in connection with section 266 of article 24 of the Local Code applicable to Worcester county, by which it was provided that no compensation should be allowed an attorney rendering services under the terms of sections 7 and 8, art. 26, of the General Code, except upon the order of the court, certifying the nature of the services and the amount to be paid for such services. It was held that this placed upon the commissioners the imperative duty of levying for and paying the amount so certified. Although there is no statute applicable to Charles county similar to that in force in Worcester county, forbidding the compensation to be paid unless the court fixes the amount, yet the reasoning used in the case cited is equally pertinent to this case as to that. The court said:

"This legislation gives to the court ample authority not only to assign counsel to defend an accused, but to fix and define, not exceeding a designated maximum sum, the amount of compensation to be paid by the county commissioners for such services. The General Assembly has seen fit to repose in the courts this authority. It is an authority immediately connected with the administration of justice and could not well be lodged anywhere else without seriously interfering with the very object the legislation was designed to accomplish. If to the county commissioners were committed the power to determine the amount of compensation to be paid in such cases, or if, as is contended for in this proceeding, they were clothed with a discretion to allow or disallow altogether, the sum claimed, it would embarrass the courts most seriously in the trial of criminal causes, because courts would then be reluctant, if not wholly unwilling, to impose upon a member of the bar the labor and responsibility of defending an accused, inasmuch as there would then be no certainty that the labor when performed,

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